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In late 2004, the Nebraska Supreme Court proposed a new rule that would define the practice of law in the broadest possible terms. The rule which is currently being debated by the court, would prohibit nonlawyers from engaging in a myriad of activities which the court deems the "practice of law." In December, HALT offered scathing criticism of the proposal in comments submitted to the court.
HALT's comments outlined two main objections to the proposed new rule. First, the proposal would deny consumers access to services provided by those who are completely competent to perform them. Second, the court has offered no evidence of consumer harm resulting from the absence of a broad ban on such activities. While the court claims that the purpose of the rule is to protect the public, HALT noted a number of provisions whose only discernible purpose is to protect the bar's monopoly over the provision of legal services.
For instance, the rule would create a Commission on Unauthorized Practice of Law, which will be selected by the state bar association and will be required to have six lawyers among its nine members. HALT's comments noted that the organization finds it "puzzling that a set of rules ostensibly designed to protect consumers takes so little account of consumer needs." HALT suggested that a system truly concerned with consumer protection would require that at least one consumer advocate serve on the commission alongside the lawyer majority.
The proposed rule bears a strong resemblance to the American Bar Association's proposed Model Definition of the Practice of Law, which was rejected by the ABA after strong opposition from HALT and numerous other groups. The rule would not only ban the use of legal document assistants or independent paralegals in the preparation of documents, but would also ban a host of other forms of assistance with legal matters. For example, the rule prohibits a nonlawyer from negotiating on behalf of another person.
"This rule would prevent a well-intentioned son from helping his elderly mother stave off eviction by negotiating with her landlord," noted HALT Senior Counsel Tom Gordon. "There are a host of other situations where this rule would prevent poor and middle-income people from receiving free or inexpensive help with their legal affairs." HALT's comments highlight the lack of access to the legal system that would be exacerbated by the proposed rule.
According to the ABA, each year, 38 million low and moderate income households need legal help, but are denied access to the civil justice system because they cannot afford a lawyer.
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